The Academic Stage of Training for Entry to the Legal Profession

The Academic Stage of Training for Entry to the Legal Profession

in England and Wales

RESPONSE

by the

Society of Legal Scholars

to

A Consultation by The Law Society of England and Wales and The General Council of the Bar of England and Wales

with Higher Education Institutions offering Qualifying Law Degrees.

Introduction

1. As was made clear to representatives of the professions and the Society of Legal Scholars / Association of Law Teachers in their meeting with the Chief Executive of the HEFCE in July 1999, university education in Law is funded in order to provide a general tertiary-level education. It is not funded to provide for the training needs of specific legal or other professions, and the Funding Council is opposed to any suggestion that the specific training needs of professions should be provided for out of public funds. This principle applies both to entry to the legal profession and entry into commercial (non-HEFCE-funded) educational programmes such as the BVC and the LPC. The Society of Legal Scholars supports the view of the Funding Council on these matters.

The Consultation Paper is premised on the assertion (paragraph 3) that members of the legal profession are concerned that the levels of knowledge and skills gained by students who graduate with qualifying law degrees in their current form are insufficient for entry into the legal profession. The allegation of insufficiency is too unspecific to permit rebuttal or discussion. If the concern is that the present Joint Statement is not being met, then the deficiencies should be identified and reported to the institution concerned. If the concern is that the present Joint Statement itself does not provide the basis for progression for entry into the legal professions, then this matter requires further discussion, but on the understanding that the professions cannot externalise their training needs onto universities.

The Society of Legal Scholars, for its part, can point to a substantial amount of evidence which would suggest that, far from there being widespread concern about the quality of law degrees, those degrees are of high quality, and open up many employment opportunities to law graduates, precisely because they are so well-regarded by employers, including members of the legal profession. Such evidence would include research by Smithers and Robinson on the employability rates of various academic disciplines, which shows that law graduates are more employable than any other discipline except veterinary science and medicine; similar findings are reported by K. Purcell et al in research carried out for the Association of Graduate Careers Officers.[1]. Further evidence is provided by the high salaries paid by solicitors to trainees, even at the beginning of their period of training. Such high salaries, while found in particular in large City firms, are not exclusively confined to such firms.

In terms of the quality of law degrees themselves, the examination of law degrees undertaken by the Quality Assurance Agency (QAA) revealed that law schools are offering a high quality of education. While the original exercise was carried out some years ago, subsequent institutional audits, in which law schools have figured, have not disclosed any concerns about the quality of law degrees in those law schools.

2. Paragraph 4 of the Consultation Paper seeks to make a case for the need for more effective quality assurance procedures in terms of widening access to the legal profession. Both the Society of Legal Scholars and institutions of higher education are committed to widening participation in higher education, and law schools, in partnership with their universities, the Government and local communities, are participating in a range of different initiatives to ensure that as many people as possible have the opportunity to participate in higher education.The Society would wish to reiterate, in this context, that the concern of the PSBs is restricted solely to widening access to the legal profession, while the concern of university law schools goes much wider than that.

Quality Assurance Procedures

In paragraph 6 of the Consultation Paper, the PSBs express their disappointment at the ending of subject review by the QAA, and opine that any form of institutional audit which may be introduced in the future will not be sufficient to enable the legal professions to have confidence in the quality of qualifying law degrees.

The SLS would argue that the PSBs are acting prematurely in jumping to conclusions about a system of quality assurance which is not yet fully operational. In order to appreciate the implications of the changes being made to the quality assurance regime in universities, it is important to remember the context in which those changes are being made. Universities have, over the last ten years, been subject to an excessive amount of bureaucracy ( a fact which is acknowledged by Government, in particular by the Cabinet Office Better Regulation Task Force[2] ). In the light of the fact that the QAA regime has revealed no serious concerns with the quality of higher education, the proposed new quality assurance regime will involve a ‘lighter touch’. However, this does not mean that it will be ineffective. Indeed, the arrangements set out by QAA (see, in particular, the QAA Handbook for Institutional Audit: England) provide for an evidence-based process, which recognises the need for publicly credible, independent and rigorous scrutiny of institutions. The Handbook emphasizes (in paragraph 5) that the institutional audit process is intended to combine scrutiny of internal quality assurance systems at an institutional level with investigations of how those systems operate at the level of the discipline and to assess the quality of the programme (emphasis in original).

The Society of Legal Scholars acknowledges that the professional bodies in Law have been part of developing the new QAA methodology, and participated actively in the trials which preceded it. The new methodology does not provide the PSBs with the same immediacy of information as some of the methods adopted in the QAA trials, which have now been abandoned. However, given that the new methodology is only just beginning, and that the full extent of the provision of public information which it entails will appear over the next couple of years, the Society considers that it would be judicious for the legal professions to await the full implementation of the new system before introducing a review methodology of their own.Over the years, the legal professions have relied on setting out statements of principle, and have tackled any specific difficulties by direct contact with the institution of higher education concerned, rather than by the introduction of a generalised inspection regime. Before the legal professions go down the road of increasing present levels of bureaucracy, a clear cost-benefit analysis has to be undertaken. The Society does not accept that the level of problems identified hitherto justifies such a step-change in the regulatory arrangements for law degrees. The Society would also note that, given the degree of involvement of external reviewers which is envisaged under the new system, law schools may choose to involve members of the legal profession in their internal reviews. The Society of Legal Scholars would not seek to dissuade individual institutions from making such arrangements.

The New Model

In terms of the proposed amendments to the Joint Statement which are set out in the Consultation Paper, the Society of Legal Scholars holds the following views:

Paragraph 7

The Society has no difficulty with a requirement that programme specifications should clearly state that the course of study is one which is recognised by the professional bodies as a qualifying law degree.

Paragraph 8

The Society has no difficulty with a requirement that the Joint Statement should include a provision stating that the institution offering the course of study should meet the expectations of QAA’s Code of Practice for the Assurance of Academic Quality and Standards in Higher Education.

Paragraph 9

The Society has no difficulty in principle with a requirement that the Joint Statement should include a provision stating that the institution offering the course of study should be able to demonstrate compliance with statutory requirements, particularly as they relate to equality of opportunity. However, the precise wording of such a requirement needs further discussion, to ensure that the obligation in the Joint Statement would not impose greater burdens on institutions than those already imposed by QAA.

The Society would emphasise that, since universities as a whole necessarily have to comply with any statutory requirement which applies to them, they are likely to establish their own compliance mechanisms. It would not be acceptable for the PSBs to require different systems to be operated solely for the purposes of the PSBs.

Paragraph 10

The Society has no difficulty with a requirement that the Joint Statement should include a provision stating that the institution offering the course of study will undertake periodic major reviews of the course through its own quality assurance procedures, such reviews normally to take place every six years.

Paragraph 11

The proposal to amend the Joint Announcement to require institutions of higher education to invite the professional bodies to nominate persons to participate in the internal review process is a matter of some concern to the Society of Legal Scholars.

As the Consultation Paper itself acknowledges, the QAA process will strongly encourage institutions to make a strong and scrupulous use of independent external persons in the internal periodic review process of disciplines and programmes (and indeed, will require such participation before a judgement of ‘full confidence’ can be made – see paragraph 59 of the Handbook). The QAA makes it clear that the role of any external reviewer would be to give advice and provide an independent perspective within the review process. The purpose of having such external reviewers is to assure the ‘outside world’ of the seriousness of the scrutiny undertaken. The external reviewer would be responsible to the institution reviewed, to QAA and ultimately to the general public, for carrying out their functions in a responsible manner.

Given the inclusion of such external reviewers, and their function of providing an independent perspective, which confirms to those outside the institution the rigour of the scrutiny, it is not clear to the Society of Legal Scholars why the QAA proposals in their present form are insufficient to meet the needs of the PSBs. It is also unclear what kind of additional input the PSBs are seeking. If there is concern about the rigour of the scrutiny, the Society would regard that concern as somewhat premature. If there are specific issues which the professions wish to see addressed, they could achieve that, as in the past, by issuing a statement of principle. If, arising out of any reports issued, there are issues relating to specific institutions, or to qualifying law degrees in general, the PSBs will be able to take them up with individual institutions, or with the academic legal community as a whole, through the Society of Legal Scholars and other bodies.

Paragraph 12

In the light of the response made by the Society to paragraph 11, it will be clear that the Society does not accept the need for the establishment by the PSBs of a register of persons approved by the PSBs as being “suitable to participate in reviews”.

Paragraph 14

This paragraph contains a reference to paragraph 5 of the Joint Statement as giving the PSBs “the right to intervene directly”. That is not an interpretation of the Joint Statement with which the Society of Legal Scholars can agree. In the view of the Society of Legal Scholars, paragraph 5 of the Joint Announcement refers to a process of “discussion”.

External Examiners

The SLS does not think it would be of assistance to institutions of higher education for the PSBs to provide guidance and/or training to external examiners. Indeed, the Society is at a loss to know what particular expertise in training external examiners resides within the PSBs.

Resources

Paragraph 17

While the Society does not object to the deletion in paragraph 2(i) of the existing Joint Statement of the reference to the Joint Committee on Standards in Legal Education, it is concerned that an appropriate reference to a ‘similar successor body’ should not also be deleted. It is, in the view of the Society, important that in assessing the resources of law schools for the purposes of the Joint Statement, the PSBs have regard to appropriate external advice.

Paragraph 19

The Society of Legal Scholars notes the attempt made by the PSBs in this section of the Consultation Paper to assist law schools in their negotiations within universities relating to the allocation of resources. However, the Society feels that this is a complex area, about which further discussion is required.

Fiona Cownie

Chair, Legal Education Committee, Society of Legal Scholars.

[1]A. Smithers & P. Robinson (1996) Trends in Higher Education, Council for Industry and Higher Education, London; K. Purcell et al (1999) Working Out? Graduates’ Early Experiences of the Labour Market, CSU, Manchester.

[2] “Red Tape Strangling Staff, says No. 10” THES, 26.7.2002.